NORDECK -v- NSW TRUSTEE AND GUARDIAN [2026] WASC 217

[2026] WASC 217 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : NORDECK -v- NSW TRUSTEE AND GUARDIAN [No 2] [2026] WASC 217 CORAM : MASTER RUSSELL HEARD : 3 JUNE 2026 DELIVERED : 3 JUNE 2026 FILE NO/S : CIV 2117 of 2025 BETWEEN : RAE NORDECK as administrator of the estate of ALAN CLIFFORD FOSTER Plaintiff AND NSW TRUSTEE AND GUARDIAN First Defendant STEPHEN HIGGS as executor of the estate of VALERIE HIGGS Second Defendant GLEN FOSTER Third Defendant LEE FOSTER Fourth Defendant LYNDA FOSTER also known as LYNDA MERLE STALLARD Fifth Defendant -- 1 of 9 -- [2026] WASC 217 Page 2 Catchwords: Administration of estates - Missing beneficiaries - Application for orders permitting administrator to distribute estate to remaining beneficiaries - Benjamin order - Trustees Act 1962 (WA) s 66 - Turns on own facts Legislation: Trustees Act 1962 (WA) s 66, s 66(5), s 108 Result: Application granted Orders made pursuant to Trustees Act 1962 (WA) s 66(5), s 108 Category: B Representation: Counsel: Plaintiff : Ms S Sunthang First Defendant : No appearance Second Defendant : No appearance Third Defendant : No appearance Fourth Defendant : No appearance Fifth Defendant : No appearance Solicitors: Plaintiff : Curae Law First Defendant : No appearance Second Defendant : In person Third Defendant : In person Fourth Defendant : In person Fifth Defendant : In person Cases referred to in decision(s): Bickford v Benson [2015] WASC 161 -- 2 of 9 -- [2026] WASC 217 Page 3 David Enzo Giovanetti as administrator of the estate of Mark Enrico Giovanetti v Giovanetti [2023] WASC 201 Nolan v Nolan [2011] WASC 224 Nordeck v NSW Trustee and Guardian [2026] WASC 19 Re Application by Little (Estate of Bruce Frederick Little) [2023] NSWSC 402 Re Application for Grant of Presumption of Death; Ex parte Jenkins [2008] WASC 49 Re Application of New South Wales Trustee and Guardian [2014] NSWSC 1857 Re Benjamin; Neville v Benjamin [1902] 1 Ch 723 Re Green's Will Trusts; Fitzgerald-Hart v The Attorney General [1985] 3 All ER 455 -- 3 of 9 -- [2026] WASC 217 MASTER RUSSELL Page 4 MASTER RUSSELL: (These reasons were delivered orally on 3 June 2026 and have been edited from the court's record to include references, footnotes and headings and to correct matters of grammar and expression.) Introduction 1 This proceeding concerns the estate of the late Alan Clifford Foster (Estate), who died without leaving a will on 27 March 2015. 2 The plaintiff, Rae Nordeck, is the deceased's aunt and was appointed as the administrator of the Estate (Administrator) pursuant to letters of administration granted on 20 March 2023. 3 By originating summons filed on 30 September 2025, the Administrator sought orders to deal with three matters in relation to the Estate, as follows: (a) orders barring a potential claim pursuant to s 64 of the Trustees Act 1962 (WA); (b) orders for advertisement in relation to an unknown or missing beneficiary pursuant to s 66 of the Trustees Act; and (c) directions that the Administrator was justified in not pursuing unsatisfied costs orders and claims against a party in relation to real property of the Estate in Coode Street, Dianella pursuant to s 92 of the Trustees Act, s 45 of the Administration Act 1903 (WA), and O 58 r 2 of the Rules of the Supreme Court 1971 (WA). 4 I made orders and gave directions, as applicable, in relation to each of those matters on 3 February 2026 (February 2026 Orders) and gave reasons for my decision in Nordeck v NSW Trustee and Guardian [2026] WASC 19 (February 2026 Reasons). I also made an order that the Administrator have liberty to apply for orders pursuant to s 66(5) of the Trustees Act in relation to the distribution of the Estate. 5 The relevant factual background and the relationship of each of the defendants to the deceased is set out in the February 2026 Reasons,1 which I refer to without repeating. As set out in those reasons, despite extensive enquiries and investigations, the Administrator has been 1 See February 2026 Reasons [12] - [21]. -- 4 of 9 -- [2026] WASC 217 MASTER RUSSELL Page 5 unable to locate the deceased's adopted brother, Mark Darren Kane, also known as Malcolm John Foster. To avoid confusion, and with no disrespect intended, I will refer to him, as he has been referred to in the submissions and the February 2026 Reasons, as the 'Brother'. 6 The February 2026 Orders included a direction made pursuant to s 66(2) of the Trustees Act for the publication of advertisements, referring to and identifying the deceased and calling upon the Brother or any persons claiming through him, such as his executor, administrator, or children, to send their claim to the Administrator. 7 The advertisements have been published as directed, and the Administrator now seeks orders pursuant to s 66(5) of the Trustees Act that she be at liberty to distribute the Estate as if the Brother had died before the deceased and as if any children of the Brother did not exist. 8 The first defendant, the NSW Trustee and Guardian, is on notice of the proceedings, but has not entered an appearance. The remaining defendants have each filed a notice of intention to abide. None of them have sought to be heard in relation to the application for orders pursuant to s 66(5) of the Trustees Act. 9 In support of her application, the Administrator relies on the affidavits filed in support of the February 2026 Orders,2 an outline of submissions filed on 15 May 2026, and an affidavit sworn by Nigel Jerome Siegwart on 14 May 2026. That affidavit verifies that advertisements were placed in the West Australian Newspaper on 6 February 2026 and 13 February 2026, and that no correspondence or notice of any claim was received from any person in response to the advertisements by the deadline specified, being 17 April 2026.3 Relevant legal principles 10 Section 66 of the Trustees Act applies where property is held by a trustee and the property, or any part of it, cannot be distributed because the trustee does not know whether any person or member of any class of person who is, or may be, entitled in distribution exists, is alive or dead, or cannot be found. It allows for the publication of advertisements by a trustee calling for anyone who may be entitled in distribution to 2 See affidavits of Angus Thomas Edwards sworn and filed on 30 September 2025 (Edwards 30 September 2025 Affidavit) and sworn and filed 16 October 2025 (Edwards 16 October 2025 Affidavit); Affidavits of Nigel Jerome Siegwart sworn and filed on 21 October 2025 (Siegwart 27 October 2025 Affidavit) and sworn and filed 27 January 2026 (Siegwart 27 January 2026 Affidavit). 3 Affidavit of Nigel Jerome Siegwart sworn and filed on 14 May 2026 (Siegwart 14 May 2026 Affidavit) [4] - [6], 'NJS1'. -- 5 of 9 -- [2026] WASC 217 MASTER RUSSELL Page 6 send in a claim, and for directions to be sought and given as to distribution of a share of an unknown or missing beneficiary. 11 Relevantly, s 66(5) of the Trustees Act allows the court, upon proof of the matters stated to make an order that the trustee be at liberty to distribute the property as if the persons specified in the order did not exist or had died before the deceased. Those matters include the inquiries made, the results of the inquiries and advertisements and any claims received. 12 An order of the kind contemplated by s 66(5) of the Trustees Act is known as a Benjamin Order, taking its name from Re Benjamin; Neville v Benjamin.4 13 I refer to and respectfully adopt Acting Master McDonald's summary of the principles applicable to an application for distribution of an estate under s 66 of the Trustees Act, by reference to the authorities referred to in David Enzo Giovanetti as Administrator of the Estate of Mark Enrico Giovanetti v Giovanetti,5 from which the following principles are derived: 1. Where a beneficiary cannot be located, evidence that the beneficiary has died is not required to make an order under s 66. The jurisdiction to make an order arises 'on the basis of the practical probabilities of the facts as known to the court at the time of making the order'.6 2. An order under s 66 is not a positive declaration of rights and is made regardless of the fact there may be some uncertainty as to the existence of a beneficiary.7 3. All that is necessary for making an order is that the court is satisfied that it is probable that the beneficiaries 'have been 4 Re Benjamin; Neville v Benjamin [1902] 1 Ch 723. 5 David Enzo Giovanetti as administrator of the estate of Mark Enrico Giovanetti v Giovanetti [2023] WASC 201 (Giovanetti) [11] - [13]. See also Nolan v Nolan [2011] WASC 224 [24] - [34], in which E M Heenan J explains the genesis and history of the court's jurisdiction to make such an order. 6 Giovanetti [11], citing Bickford v Benson [2015] WASC 161 (Bickford) [13] (Jenkins J); Re Green's Will Trusts; Fitzgerald-Hart v The Attorney General [1985] 3 All ER 455 [462] - [463]; Re Application for Grant of Presumption of Death; Ex parte Jenkins [2008] WASC 49 [22]. 7 Giovanetti [11], citing Bickford [14]; Re Application of New South Wales Trustee and Guardian [2014] NSWSC 1857 [4], [6]. -- 6 of 9 -- [2026] WASC 217 MASTER RUSSELL Page 7 ascertained and that no reasonable further enquiries could be made which would improve the state of the evidence'.8 4. The size of the estate may be a relevant factor in determining the reasonableness of any further enquiries.9 5. The effect of an order under s 66 is to relieve an administrator from liability if the basis on which the estate is distributed turns out to be wrong, not to extinguish any right of a missing beneficiary who is later found.10 Determination 14 I am satisfied on the evidence adduced, including that relied upon in relation to the February 2026 Orders, that the Administrator has conducted extensive enquiries and searches and has taken all reasonable steps to locate the Brother. As stated, advertisements have been published on 6 February 2026 and 13 February 2026 calling for him, or any persons claiming through him, if he is deceased, to send their claim to the Administrator by 17 April 2026. No claims have been received.11 15 As referred to in the February 2026 Reasons, the Administrator's solicitors have conducted investigations into the circumstances of the Brother's adoption. During those investigations, enquiries were made of possible identities of the Brother and their surviving relatives. Enquiries were also made of the Western Australian Department of Communities and Registry of Births, Deaths and Marriages and the Supreme Court of New South Wales.12 16 The Administrator's solicitors also attempted to locate the Brother via Landgate and electoral roll searches.13 Efforts have also been made to contact various family and extended family of the deceased to ascertain the whereabouts or fate of the Brother, including whether he had children.14 8 Giovanetti [13], citing Re Application by Little (Estate of Bruce Frederick Little) [2023] NSWSC 402 (Re Application by Little) [35]. 9 Giovanetti [13], citing Re Application by Little [34]. 10 Giovanetti [12], referring to Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (21st ed, 2018 Sweet & Maxwell) [65-18]. 11 Siegwart 14 May 2026 Affidavit [4] - [6], 'NSJ1'. 12 Edwards 30 September 2025 Affidavit [14] - [28], 'ATE5' - 'ATE20'. See also Edwards 16 October 2025 Affidavit. 13 Edwards 30 September 2025 Affidavit [35] - [36], 'ATE30'. 14 Edwards 30 September 2025 Affidavit [39]. -- 7 of 9 -- [2026] WASC 217 MASTER RUSSELL Page 8 17 The enquiries and steps taken to locate the Brother are, in my view, appropriate in the circumstances of this case. Having regard to the size of the Estate, which had a net value of $535,401.37 as at 27 January 2026,15 and the rights of the remaining beneficiaries, I am satisfied there are no further reasonable steps that would improve the position or the state of the evidence. 18 I am satisfied that it is appropriate to grant the orders sought under s 66(5) of the Trustees Act, for the Estate to be distributed as if the Brother had died before the deceased and as if any children of the Brother did not exist. This will enable the Administrator to distribute the Estate to the known beneficiaries. Conclusion and orders 19 For these reasons, I am satisfied that it is appropriate to make orders substantively to the effect of those sought by the Administrator. I am also satisfied that it is appropriate to make an order pursuant to s 108 of the Trustees Act that the costs of the application be paid from the Estate. 20 I will make orders as follows: 1. Pursuant to s 66(5) of the Trustees Act 1962 (WA) (Act), the plaintiff has liberty to: (a) distribute the estate of Alan Clifford Foster (Estate) as if the deceased's adopted brother, Mark Darren Kane (also known as Malcolm John Foster), died before the deceased and as if any children of Mark Darren Kane did not exist; and (b) distribute the Estate to: (i) Rae Nordeck, in her personal capacity, as to one third; (ii) Glen Foster, Lee Foster and Lynda Foster (also known as Lynda Merle Stallard) as to one third collectively; and (iii) the estate of Valerie Higgs, as to one third. 15 Siegwart 27 January 2026 Affidavit [2], 'NJS1'. -- 8 of 9 -- [2026] WASC 217 MASTER RUSSELL Page 9 2. Pursuant to section 108 of the Act, the plaintiff's costs of and associated with the application be paid out of the Estate. 3. The fourth and fifth defendants have liberty to apply in relation to order 2 within 14 days of service of a copy of these orders on them. 21 Order 3 has been made on the basis that the fourth and fifth defendants, Lee and Lynda, have each filed a notice of intention to abide stating they will accept any order made by the court other than as to costs. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. SC Associate to Master Russell 3 JUNE 2026 -- 9 of 9 --